Parker v. Tapscott

107 So. 561, 142 Miss. 768, 1926 Miss. LEXIS 101

• Court: Mississippi Supreme Court
• Decided: January 25, 1926
• Docket: No. 25290.
• Status: Published

Opinions

^* Corpus Juris-Cyc References: Appeal and Error, 4 CJ, p. 946, n. 10. Equity, 21 CJ, p. 516, n. 17; p. 517, n. 24. Fraudulent Conveyances, 27CJ, p. 875, n. 36, New; p. 882, n. 20; p. 891, n. 95; Statutory requirements on sale of stock of goods in bulk, see notes in 2 L.R.A.(N.S.) 331; 20 L.R.A. (N.S.) 160; L.R.A. 1915E, 917. 12 R.C.L., p. 525; 2 R.C.L. Supp., p. 1443; 4 R.C.L. Supp., p. 761; 5 R.C.L. Supp., p. 649. The appellants filed their bill against the appellees to cancel the transfer of a certain stock of goods, alleged to have been fraudulently transferred by appellee Tapscott to Miss Rosa Young; that the sale of the goods was wrongful, and was pretended and resulted from a conspiracy on the part of the parties to defeat appellants in the collection of a certain judgment they had against Tapscott. After a full hearing of the facts, the chancellor decided the transfer of the goods in the store was in good faith and valid. From this decree the appeal is prosecuted.

The pleadings and proof in the case went upon the theory that the sale of the stock of goods was a sham, and was for the purpose of defeating the collection of a judgment due appellants. In other words, the complainant prosecuted his cause on the ground that the appellee, Tapscott, had fraudulently transferred his interest in the stock of goods, so that his creditor, the appellant, could not levy against the goods to satisfy a judgment for about one thousand five hundred dollars.

After all the evidence had been heard by the chancellor on the issue of whether or not the transfer of the stock of goods was fraudulent, without consideration, and was for the purpose of defeating the judgment of the appellant, and while the arguments of counsel were being made to the court, the question of whether our Bulk Sales Statute (Hemingway's Code, sections 3129-3132) was involved in the case arose on motion before the chancellor. Up to this time the Bulk Sales Statute had not been specifically mentioned in the case by the pleadings or the proof. At this juncture of the trial, which was practically over, except a part of the argument was yet to be heard, the appellant moved the court for permission to amend his bill, so as to charge that the Bulk Sales Statute had been violated, and that the sale of the stock of goods should, for that reason, be canceled.

Objection was made to the amendment, and the court sustained the objection, upon the ground that the bill did not charge a violation of the Bulk Sales Statute, and that to allow the amendment at that stage of the trial would be to change the character of the lawsuit, and require the defendant to meet a case which the pleading did not present. The appellant contends that under the allegations of his bill it was proper for him to show a violation of the Bulk Sales Statute without having alleged its violation, and that the proof offered was sufficient to bring the case within the statute; but that, if mistaken in this, that then the court erred in not allowing him to amend the bill, so as to come within the Bulk Sales Statute.

We are unable to agree with the contention of appellant. The pleadings and proof do not bring the case within the Bulk Sales Statute, nor was the cause tried upon that theory. It is clear from the record that a violation of the Bulk Sales Statute had not been expressly presented until the case was closed and the argument begun before the chancellor, when the statute was mentioned for the first time. The cases cited by appellant were brought under the Bulk Sales Statute. It was within the discretion of the chancellor to refuse to allow the complainant to amend his bill at the close of the trial, and we see no abuse of discretion in that regard. Griffith's Mississippi Chancery Practice, section 393, chapter 403, and cases cited therein.

The appellant was an individual creditor of the appellee. The debt claimed was not for goods sold to the appellee partnership, but was a judgment for an individual claim against appellee. We do not decide whether the Bulk Sales Statute is applicable to individual creditors, because it is unnecessary to do so in the case before us. The decree of the lower court is affirmed.

Affirmed.